The argument yesterday in Hoffmann v. WBI Energy Transmission, Inc. left little doubt about how the justices will resolve this one: they seem unlikely to hold that the gas company condemning land for a federally approved pipeline should have to pay attorneys’ fees that the United States would not have to pay if it condemned the land directly.
The dispute involves the 1947 Natural Gas Act’s treatment of interstate natural-gas pipelines. When the federal government approves such a pipeline, the Natural Gas Act allows it to acquire the land in which to build the pipeline or leave that to the gas company. In either case, if the landowner does not agree, a suit exercising the federal government’s right of eminent domain can force a transfer of the land for a “necessary right-of-way,” so long as the landowner receives the “just compensation” that the Fifth Amendment requires when property is “taken for public use.”
The landowners here argue, with some support in the lower courts, that if the pipeline company rather than the United States condemns the land, the pipeline company should be bound by state-law rules that require more compensation than the federal Constitution. In particular, North Dakota law well might require the company to pay the attorneys’ fees of the landowners.
The justices, though, were having none of it. The air was redolent with skepticism from the moment Robert McNamara rose to press the landowners’ view. Justice Clarence Thomas started off by asking – doubtfully – whether “if the U.S. delegates its power … of eminent domain, you’re saying that it brings with it state law trappings of just compensation?” Chief Justice John Roberts quickly interjected that “it seems to me it’s just a more efficient process to have a private developer get the land under the same terms as the federal government without having to pay the attorneys’ fees that the state wants to insist on.” When McNamara stuck to his position, the chief justice eventually concluded the discussion by commenting: “I don’t understand why this isn’t an easy case.”
It seemed for a while that several of the justices would offer a slightly different reason to reject McNamara’s argument, with Justice Sonia Sotomayor coming in quickly to press the idea that “you’re trying to separate the right to eminent domain from the right to compensation, correct?” and then pointing to “a[n] 1893 case … in which we said, [it is] a settled principle of universal law that [they are] inseparably connected. … I don’t see how your separation of these principles honors that.”
For Ketanji Brown Jackson, the problem was McNamara’s assumption “that state law, with respect to just compensation is the default,” and that “it needed to be ousted by congressional expression.” But if that were true, she pointed out, why would Congress have thought it important, in a 1946 condemnation statute adopted just one year before the Natural Gas Act, to take the trouble explicitly to import state law? That statute’s treatment of the condemnation problem appears to contrast sharply with the treatment in the Natural Gas Act just one year later. As Jackson asked pointedly: “What is [that language] doing there if … silence [by Congress means that] state law applies?” Justices Brett Kavanaugh and Amy Coney Barrett pressed McNamara on the same point: they took it as self-evident that the 1946 statute importing state law suggested that a 1947 statute silent on the topic calls for the application of the baseline federal rule emphasized by Thomas and Roberts.
You have to expect it will be pretty hard to fashion a majority if Justice Thomas and the chief justice on one side see it as an “easy case” against you and Jackson and Sotomayor on the other side are predisposed to reject what you have to say. And nothing in the remainder of the argument suggested any reason to think otherwise. The presentations of Paul Hughes (for the pipeline company) and Zoe Jacoby (for the government) were filled for the most part with softball questions speculating about why lower courts might have found such an obvious question challenging.
I would not be at all surprised if this was one of the very first decisions from the November session. The share of simple unanimous statutory cases is not so high as it used to be, but this has all the earmarks of a straightforward unanimous affirmance.
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[ H/T SCOTUSblog ]
